Doddrell and Doddrell

FEDERAL CIRCUIT COURT OF AUSTRALIA

DODDRELL & DODDRELL

[2014] FCCA 2305

Catchwords:
FAMILY LAW – Parenting – where matter settled with the consent of the parties and the Independent Children’s Lawyer on live with arrangements, parental responsibility and spend time with arrangements however the Independent Children’s Lawyer sought additional orders to make the mother’s overnight time with the children conditional upon certain health professionals stating that the mother is “capable of coping” with the children on an overnight basis – where Independent Children’s Lawyer sought orders to “safeguard” the children – protection of children from the exposure to harm – where orders sought would interfere with the mother’s therapeutic relationship with professionals – necessity for the orders to “safeguard” the children not supported by evidence – absence of notice to suggested reporter.

Legislation:

Family Law Act 1975, ss.60CC, 60CC(2A), 60CA, 61DA, 65DAA, 65DAC

Harrison & Woollard (1995) FLC 92-598
Re R Children’s Wishes [2000] FamCA 43

Applicant:

MR DODDRELL

Respondent:

MS DODDRELL

File Number:

PAC 3811 of 2013

Judgment of:

Judge Harman

Hearing dates:

2-3 October 2014

Date of Last Submission:

3 October 2014

Delivered at:

Parramatta

Delivered on:

10 October 2014

REPRESENTATION

Counsel for the Applicant:

Ms Shearman

Solicitors for the Applicant:

Dignan & Hanrahan Solicitors & Attorneys

Counsel for the Respondent:

Ms Karen Conte-Mills

Solicitors for the Respondent:

Stanfords Solicitors & Conveyancers

Counsel for the Independent Children’s Lawyer:

Ms Sloane

Solicitors for the Independent Children’s Lawyer:

Marsdens Law Group

ORDERS

Decline to make the orders sought by the Independent Children’s Lawyer.

IT IS NOTED that publication of this judgment under the pseudonym Doddrell & Doddrell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3811 of 2013

MR DODDRELL

Applicant

And

MS DODDRELL

Respondent

REASONS FOR JUDGMENT

The proceedings

These are proceedings involving competing parenting applications as to the future care and welfare of two children, namely:
X born (omitted) 1999; and
Y born (omitted) 2004
The parties to the proceedings are the children’s parents, being their father Mr Doddrell (who is the Applicant) and their mother Ms Doddrell (who is the Respondent).
The parties have been able to reach agreement with respect to a substantial raft of parenting orders. Orders have now been made by consent which determines the substance of the judicial controversy between the parents. Those orders provide for:
a)The parents to have equal shared parental responsibility for X and Y;
b)X and Y to live with their father;
c)X to spend time with her mother in accordance with her wishes (and lest there be any doubt X has expressed to the Family Report writer a clear and unequivocal wish to spend time with her mother); and
d)Y to spend time with his mother each Wednesday afternoon for a period of some hours together with periods from 9am until 3pm one day each alternate weekend and to continue until Christmas 2014 when time will then increase to incorporate overnight time one weekend per month and during school holidays as well as a continuation of more regular day time periods.
The issue which requires determination at this time arises from an application by the Independent Children’s Lawyer for two further and additional orders and in the following terms:
1. That the Respondent mother’s time with the children in accordance with order 3(d) not commence until the Respondent mother has provided the Applicant father with a letter from her treating mental health professionals stating that the Respondent mother is capable of coping with the care of the children on an overnight basis, such letter to be prepared and served no earlier than two (2) weeks prior to overnight time commencing.
2. In the event that the Respondent mother is unable to provide the documentation requested in order 1 above then the children are to spend daytime only with the Respondent mother on the 1^st and 3^rd Sunday of each month, from 9am until 3pm.
The above orders are resisted by both Mr and Ms Doddrell.

Material considered

Unusually this determination arises not only after the parties have reached an accord with respect to the resolution of their dispute, but after the first day of trial had occurred. The father’s case had closed and the mother was in the process of being cross-examined by the father’s counsel and the Independent Children’s Lawyer.
On day two of the hearing each of the parties and the Independent Children’s Lawyer sought the Court’s indulgence to allow some time for negotiations to resume (they having been invited to resume those negotiations at the conclusion of evidence on day one of the hearing). The entirety of day two had been consumed by the parties in their negotiations and to good effect.
As a consequence of the above I have read and considered each of the documents filed by the parties together with a number of exhibits. I propose to enumerate the material considered for the sake of clarity.
In the mother’s case I have read and considered each of the following:
a)The Response filed 27 September 2013;
b)The Form 4 filed 23 December 2013;
c)The Affidavit of Ms Doddrell affirmed 17 September 2014 and filed 19 September 2014;
d)A Case Outline Document provided by counsel for Ms Doddrell, being Exhibit M1; and
e)A Minute of Orders sought by Ms Doddrell, being Exhibit M2.
In the case of the father I have read and considered each of the following:
a)The Initiating Application filed 11 June 2013;
b)The Affidavit of Mr Doddrell sworn 26 June 2013;
c)The Affidavit of Mr Doddrell sworn 23 July 2014;
d)The Affidavit of Ms J sworn 28 July 2014 (the paternal grandmother); and
e)The Case Outline Document provided by counsel for Mr Doddrell, being Exhibit F1.
In the Independent Children’s Lawyer’s case I have had regard to:
a)Exhibit ICL1, a Case Outline document;
b)Exhibit ICL2, a Handover Management Form dated 11 July 2014 and produced by (omitted) Mental Health Service;
c)Exhibit ICL3, a Management Plan regarding Ms Doddrell and produced by (omitted) Mental Health Service;
d)Exhibit ICL4, a Mental Health Assessment produced by (omitted) Mental Health Service 15 February 2014;
e)Exhibit ICL5, Clinical notes produced by (omitted) Mental Health Service 23 April 2014;
f)Exhibit ICL6, Clinical notes produced by (omitted) Mental Health Service 8 August 2014;
g)Exhibit ICL7, a Minute of Order (as enumerated above).
In addition to the above material I have also read and considered a Part 15 Expert Report produced by Dr R and marked Exhibit A.

Submissions and evidence

The Independent Children’s Lawyer submits that orders as sought by them are necessary and appropriate as a “safeguard”. It is proposed by the Independent Children’s Lawyer that some reassurance as to the mother’s functioning, both physically and mentally, is required prior to overnight time commencing.
The Independent Children’s Lawyer submits that the material contained in each of the Exhibits ICL2-6 are of concern and would suggest some real reason for precaution as regards the children’s time with their mother particularly on an overnight basis.
To deal with the issue it will be necessary to have some brief regard to the evidence that is before the Court. I do not propose to canvass the evidence in detail or to set all of the evidence out in these reasons. However, suffice to say that all of the evidence referred to above and including that which has arisen from the cross-examination of the parties has been taken into account by me.
Exhibit ICL2, a document created 11 July 2014, refers to the mother’s risk of self-harm. It suggests that the mother “reports regular self harm… and minimal willingness to change this behaviour”. The mother is suggested to have expressed “chronic suicidal ideation” and “ongoing anxiety”. Importantly, it is suggested that these reported behaviours are connected with two specific stressors, namely:
a)“Any contact from the father can trigger more distress;” and
b)“Ongoing Guilt/responsibility/shame [sic] and hopelessness… Reduced dramatically over 2014”.
To give a context to the above it is necessary to consider the background of each of the parents.
There is no dispute between the parents that they met and commenced a relationship in mid-1997. The parties met whilst they were both inpatients at a mental health facility at (omitted) Hospital.
The father concedes, frankly and appropriately, that he was, at an early age and in 1997, diagnosed with schizophrenia. To his credit Mr Doddrell has, since 2003 been in good health both physically and psychologically and with few exceptions. Importantly, Mr Doddrell’s mental health has been well managed in consultation with his treating practitioners and he has been compliant with his treatment plan and thus functioned well in the community and has cared for himself and the children of the relationship.
Ms Doddrell has, since 1990, been engaged with the (omitted) Community Mental Health Service. Ms Doddrell has been diagnosed with anxiety and depression based disorders as well as epilepsy. Some controversy regarding the latter diagnosis arises from the material. However, Ms Doddrell has clearly suffered from epilepsy and/or epilepsy like symptoms including, at times, significant seizures (although these would appear to have abated and resolved in recent times).
During the course of her cross-examination Ms Doddrell was questioned extensively regarding the seizures which she has experienced and responded compellingly at one point “I have epilepsy. Why are you putting me down? It’s bad enough I’ve got to live with it”.
Ms Doddrell has been the victim of significant wrongdoing by others and significantly has been the victim of sexual assaults by her father (from an early age) and by a member of staff at the (omitted) Hospital. The records tendered by the Independent Children’s Lawyer and the evidence of Ms Doddrell would suggest that assaults by this staff member occurred both whilst Ms Doddrell was an inpatient of the hospital as well as at Ms Doddrell’s home by the same person visiting that home.
The above matters are of some particular significance both in understanding and appreciating Ms Doddrell’s fragility, her need for ongoing support and assistance from the community health service as well as putting into context certain aspects of the evidence and submissions.
The Independent Children’s Lawyer’s Case Outline Document had raised as an issue for determination in the proceedings:
The Respondent mother has made a number of allegations of sexual assault against her by various person, [sic] including allegations of sexual assault against her in the family home by her father and by “Mr I” [being the hospital staff member] and the Court will need to consider whether she can adequately protect the children from a risk of sexual harm.
This issue was identified consistent with that which had been raised by Dr R in his report.
One aspect of the Part 15 Report which is somewhat extraordinary is the manner in which the mother’s past history of sexual assault has been discussed.
At page 12 of the Report it is noted [commencing at line 433]:
With regard to her perception she did speak repeatedly and inappropriately about being raped by her father as a 2 year old and then again as an adult. She seemed to use the word rape in a very all encompassing [sic] and indiscriminant [sic] way. She also talked about being raped about [sic] a man in her house but then said that she stopped him from having any sexual contact with her. Due to her below average or borderline intelligence it was difficult to distinguish clearly the full extent of her belief system. I was unclear as to whether her ideas about rape were in relation to her restricted terminology or whether these were delusional in nature and unshakeable or whether they were more overvalued ideas which are strongly held beliefs that are just below delusional intensity.
What is extraordinary with respect to the above is the failure to take into account that, irrespective of any imprecision in the mother’s language or use of language, that the sexual assaults by her father and by the hospital worker were real.
Ms Doddrell’s evidence in the proceedings (borne out and corroborated to a significant extent by material produced on subpoena) would suggest that the mother has been the victim of and has ensured significant sexual assaults, in the case of her father over the entirety of her childhood, and that these have had a profound and significant impact upon her.
The Report goes on to suggest two matters of some significance and which, no doubt, impact upon the orders sought by the Independent Children’s Lawyer. These are:
a)At page 25 of the Report [commencing at line 920] it is opined:
From her description it seems extremely unlikely that she was raped or sexually abused by Mr I whom she invited into the house last year. However she described it as sexual abuse or rape and involved the police. This is very dramatic and unstable behaviour.
b)In the Report’s recommendations and it would seem, upon an acceptance that the mother’s allegations of sexual assault by her father and, more recently, a hospital staff member are false, exaggerated or delusional, a recommendation is advanced [commencing at page 28 line 1047]:
She may continue to search for information from them [the children] that she could then use to make allegations against the father. This would be a very worrying development.
And further [commencing at page 29 line 1083]:
Should there be any sexual abuse or abuse allegations made against the father this would be a worrying development. In this case it [sic] would need to protect the children from such allegations and potential investigations. If the mother was making false and spurious allegations against the father it would be a very serious development and under these circumstances I would suggest that contact should be reduced to recognition contact.
This would appear to be a quantum leap from the report writer’s assumption or conclusion that the mother was “delusional” as regards allegations of sexual assaults upon her by others and extending and extrapolating that opinion, once formed to suggest the mother’s potential to manufacture allegations with respect to the father deliberately or labouring under the type of delusion which the report writer, I am satisfied, erroneously suggested the mother had suffered from.
There is nothing in the evidence, whether available to the Court or to the report writer, which would suggest that the mother’s allegations of sexual assault are other than true and genuinely, authentically and validly expressed. Indeed, during the mother’s cross-examination (even though not completed) her evidence was compelling. Yet, the report writer has described the mother’s report of sexual abuse within the context of “abnormal beliefs and demands”.
There is certainly nothing in the evidence that would suggest that the mother has ever made nor would, in the future, make allegations with respect to Mr Doddrell of a sexualised nature or otherwise.
The mother has produced, as part of the evidence in her case, a report from her case manager being a registered nurse. This report, dated 24 September 2014, makes clear that Ms Doddrell has been a client of the (omitted) Community Mental Health Service for some 24 years. The report outlines Ms Doddrell’s history of engagement and treatment, noting an admission 16 December 2012 to 27 February 2013 (importantly corresponding with the suggested sexual assault by a member of hospital staff and occurring contemporaneous with the separation of the parents).
The report suggests that Ms Doddrell’s:
… current mental state has been reasonably stable considering the level of stressors she has been experiencing, she is anxious about the court and the outcome but seems to be managing these stress levels… There has been no evidence of self harm.
The report otherwise goes on to describe Ms Doddrell’s treatment and management including reference to a “… comprehensive Management Plan” which Ms Doddrell “… does her best to follow…”, and taking medication as prescribed and attending regularly upon her treating Psychiatrist Dr I each four to six weeks.
The report concludes by indicating:
Improvement is slow but Ms Doddrell’s behaviours have lessened as she learns alternative coping strategies. Ms Doddrell has a chromosomal abnormality [which is shared by the eldest child X] so her progress should be seen as significant and there is no reason to presume her improvement would stop.
The above evidence is particularly relevant in light of the material tendered in the Independent Children’s Lawyer’s case in which it is suggested as recently as February and July 2014 that her treating medical practitioners had some concern as to Ms Doddrell’s propensity to self-harm. Whilst the period since those notations has not been significant there would appear to have been some clear progress.
The orders which have been made with the consent of the parents (and the Independent Children’s Lawyer) provide for an increase to overnight time between Y (and in all probability his sister X) commencing Christmas Day 2014.
Significantly, Mr Doddrell opposes the very orders which the Independent Children’s Lawyer seeks. In that context it is perhaps also instructive to consider further a number of aspects of the evidence.
At page 21 of the Report [commencing at line 787] it is opined that Mr Doddrell is “… very child focused”. It is further opined [commencing at line 798] that:
… He seemed to be able to emotionally respond to them [the children] and was also able to understand their needs and how their needs were more important than Ms Doddrell’s needs if there needed to be a choice…
I formed the view that Mr Doddrell was a capable caring parent. I believe that he is able to be child focused and place the children’s needs as paramount and respond to them and provide for them… I was very impressed with his overall insight and ability to respond to them in spite of his chronic mental illness.
The Report also then indicates [page 22 line 811] “I also believe the father has a good understanding and the need to protect the children from harm…”
I accept the above comments as regards Mr Doddrell. He is a man who has met his responsibilities as a parent. He is clearly focused upon providing for the children and has, since separation, met their needs at all times.
As regards the children’s relationship with their mother the Report observes [page 23 line 858]:
Ms Doddrell’s interaction with the children was very loving and caring. The children responded positively to her and enjoyed interacting with her.
As regards the children’s wishes the following is opined [page 25 line 950]:
The wishes of the children and weight to be given to those wishes.
Both children appear to be developing reasonably well both cognitively and emotionally for their respective ages. They do have some cognitive difficulties with some learning problems. However they seem to be functioning reasonably well. They are both positive children. They have a good relationship with both parents. They care a lot about both parents. They were obviously worried about their mother and want to be fair to her. I formed the view that the children were both comfortable and happy living with their father. They did also want to see their mother.
The report writer goes on to opine [page 26 commencing line 964]:
…I don’t believe that they have the maturity or clear view [sic] about what is best for them… They are not in a position to care for their mother and it would not be in their best interests.

Ms Doddrell’s capacity

As I had remarked to the parties during the course of the hearing I do not intend, by any comment made by me (whether orally or in these reasons) to be offensive to or pejorative of either parent and especially not of Ms Doddrell.
Ms Doddrell is clearly a person who has been damaged by life. As a consequence of childhood experiences (and possibly other pre-morbidity), Ms Doddrell has been disadvantaged educationally and has some difficulties with literacy. No doubt the seizures which Ms Doddrell has experienced together with the anxiety and depression which she has been left with at this point in her life have also impacted and worsened those difficulties. However, I see no basis for the opinion offered by the report writer that Ms Doddrell is a person of “low intellect” (see page 25 line 943 of the Report).
The evidence that is led in Ms Doddrell’s case would suggest that she is presently functioning and coping whilst living independently. That is not to suggest that Ms Doddrell does not continue to bedevilled with anxiety, depression and epilepsy. However, they are conditions that she has lived with for many years, indeed, most if not all of her adult life.
The Court must be concerned to ensure the children are adequately and properly parented whilst in the care of each parent. Nothing has arisen during the cross-examination of Ms Doddrell which would cause me concern that her evidence, and that led in her case, was other than truthful and candid.
These children and each of them clearly love their parents. The Court is encouraged to seek to elicit the child’s experience. Parents are routinely encouraged to seek to stand in their children’s shoes and to see the world through their children’s eyes. So too must the Court.
These two children now aged 15 and 10 (nearly 11) years of age have lived all of their lives with what might, from an outsider’s perspective, be perceived as the “deficiencies” of their parents. However, these deficiencies, whilst an inaccurate description of that which has been referred to at least by the report writer, are matters with which the children are familiar and experienced. The children do not experience deficiencies in their parents. They experience their parents as they are and take them into account as they are and in light of the lived reality.
Ms Doddrell’s health issues (both physiological and psychological) have been apparent the entirety of these children’s lives. They significantly predate the children’s birth. These children have grown up with their parents and each of them and are fully aware of the characteristics of each of their parents.
There is nothing in the evidence which suggests that the children have been negatively impacted by the health difficulties that each of their parents have experienced. Further, there is nothing in the evidence to suggest that the children crave or desire anything other than a fulsome relationship with each of their parents.
Prior to the separation of these parents (when the children were 13 and eight years of age respectively) these children lived in an intact family which comprised two parents with particular disabilities, illnesses and associated symptomology. Certainly, whilst an intact family the parents and each of them had the potential to “safeguard” against any escalation in such symptomology and to ensure that the children’s needs were met. However, the lived experience for these children was growing up with two parents who each faced a number of difficulties in their life.
The Court must act protectively. The legislation requires that it be so. It is on this basis that section 60CC(2A) of the Family Law Act 1975 provides that the protection of children from exposure to harm is prioritised above all else. However, it is difficult to ascertain, in this case, what “harm” the children are to be protected from.
During Mr Doddrell’s cross-examination it was conceded by him that supervision of time between X and her mother was not necessary. Supervision of Y’s time was pressed initially although the orders into which the parties have entered by consent do not require supervision. This reflects an acceptance by Mr Doddrell that such supervision is no longer necessary.
When questioned as to the bases for supervision of either child’s time with their mother two matters were identified, namely:
a)Concerns that the mother might speak ill of the children or, in the language of the Expert Report, “overburden” the children with discussion of their father or parenting arrangements; and
b)Concerns that the children or either of them might be emotionally harmed (if not physically) in the event that the mother should experience seizures whilst the children were with her and the children put through the experience of witnessing their mother undergoing seizures and/or seeking assistance for her.
The issues with respect to the mother’s epilepsy were specifically raised during the course of the first day of trial and in the context of the extent to which the mother’s epilepsy was genuinely asserted as a “risk” to the children. It is to be noted that a significant number of children within the community (both in intact and separated families) live with a parent with epilepsy or some other physical ailment or disability.
Ultimately, Mr Doddrell is accepted by Dr R as insightful and protective of the children. Mr Doddrell has determined and accepted that supervision is not required. Further Mr Doddrell is accepted, based on the evidence that has been led and available to the parties and the Independent Children’s Lawyer (and the Court), that the mother is able to meet the needs of the children and is capable of providing for them, without supervision, for the periods now ordered.
The above matters are submitted, by the father’s counsel, as being significant. To paraphrase submissions put by counsel for the father, if one is to accept the evidence of Dr R, that the father is capable and insightful as a parent, then one need go no further than his acceptance of the mother’s capacity.
Other than the suggested absence of evidence to support the need for orders as proposed by the Independent Children’s Lawyer a more philosophical issue arises, as is spoken to by submissions of the parties, as to the utility of orders as proposed by the Independent Children’s Lawyer. These issues particularly focus upon the potential for the orders as entered into by the parties to be frustrated by the requirement for, in essence, “third-party approval” of the progression of time arrangements as well as the potential detriment of infringing upon the mother’s therapeutic treatment.
I propose to deal with issues relating to the latter of the above propositions before otherwise addressing the matter by reference to the legislative pathway.

The mother’s therapeutic assistance and interference therewith

The orders which the Independent Children’s Lawyer proposes require a number of actions on the part of the mother and non-party participants.
The mother would be required to authorise and instruct her “treating mental health professionals” to prepare a letter or report on her behalf. This would inherently require that Ms Doddrell authorise the release of information and the provision of opinion with respect to her mental health and functioning to third parties.
There are a number of concerns with the order proposed by the Independent Children’s Lawyer. That is not to suggest any criticism of the Independent Children’s Lawyer for seeking the order. The Independent Children’s Lawyer has, as indicated above, prefaced their position as seeking “safeguards” for the children’s care.
Before proceeding to make any order which would provide a “safeguard”, the Court must be satisfied that there is a risk, perhaps an unacceptable risk, to the children. I am not satisfied that the evidence would establish this.
Whilst certainly the evidence in the proceedings and that contained within the exhibits tendered in the Independent Children’s Lawyer’s case demonstrate some concerns as to the mother’s functioning in recent times they are not concerns which are expressed as current. Indeed the Independent Children’s Lawyer’s exhibits suggest, with respect to the mother’s past self harm “unlikely to self-harm if others present… risk of harm to others is low”.
What the evidence tendered in the Independent Children’s Lawyer’s case would suggest is that the mother is made anxious and distressed by a number of factors, not the least of which is the continuation of proceedings, the uncertainty which arises from same and the interference (perceived and to some large extent real) in the mother’s relationship children. It is to be noted that since the separation of the parties in late 2012, the mother’s time with the children has been sporadic and supervised.
I have real difficulty in accepting the evidence of the report writer to the extent that it suggests a need for ongoing supervision of time. Whilst the report writer has not yet been cross-examined (and neither party has sought to proceed with cross-examination of the report writer for the purpose of dealing with this limited issue) that which is relied upon in support of the recommendations advanced is problematic.
One specific aspect of the evidence which suggests concern, from the report writer’s perspective, is conversation between the mother and the children as part of the report interviews. It is suggested on this occasion that the mother had raised with the children matters which were inappropriate. The mother was cross-examined with respect to these issues.
Portions of the Report dealing with this interview and conversation commences on page 18 line 659 wherein the report writer:
… asked Ms Doddrell if she wanted to ask the children any questions. The mother said to them “what are your wishes towards me. Who do you want to live with. Is it better living with the father or with me or to share. I am okay with what you say.” [sic] The children looked a little overwhelmed.
What then follows is conversation between the mother and the children as to future care arrangements. During this conversation, importantly, the report writer joins in and also asked the children questions along similar lines as well as directing questions towards the mother in the children’s presence.
Whilst it is often suggested that children should not be exposed to questioning as to proceedings between their parents it is clear that:
a)Children routinely are.
b)It would be disingenuous to suggest arbitrarily and with respect to all children in all contexts, that such questioning is entirely inappropriate. These two children, aged 10 and 15 respectively, are fully aware of the conflict between their parents, the existence of proceedings and the purpose of their attendance upon interviews with the report writer.
c)To the extent that the mother had sought to directly question the children as to their future wishes and desires, this has arisen at the request and invitation of the report writer, within the context of report interviews and with the report writer’s involvement in the very same conversation.
I am not satisfied that the above can or should be taken as a significant criticism of Ms Doddrell nor reflective or suggestive of that which is then opined by the report writer namely an “overburdening” of the children.
Reference was also made to comments made by Ms Doddrell to Mr Doddrell of an insulting and derogatory nature and to which comments the children were exposed. Ms Doddrell denied having made such comments with the children present, although she did not deny having made comments of the general nature as alleged (which comments were clearly derogatory of Mr Doddrell and inappropriately so). However, the incident dealt with during cross-examination occurred contemporaneous with the separation of the parties and at a time that Ms Doddrell was a forensic patient at (omitted) Hospital. In those circumstances, I am not satisfied that this incident could support a finding that the children would be exposed to such behaviours in the future nor reflective of any incapacity on the part of Ms Doddrell.
Overall, I am not satisfied that the children are or would be exposed to risk through either spending time with their mother or spending the limited, unsupervised periods of time with their mother provided by the orders now made.
Further difficulties arise as regards the orders proposed by the Independent Children’s Lawyer. These include:
a)There is no specificity as to which person or persons might fall within the description of the mother’s “… treating mental health professionals”. Clearly on the basis of the use of the plural “professionals” it might be inferred that comment by more than one person involved in the mother’s treatment would be required. Even if only one person’s comment or opinion were sought there would remain some difficulty as to the identification of that person and the requisite level of qualification to meet the description contained within the order.
b)The uncertainty of the phrase “… capable of coping with the care of the children on an overnight basis” is also of concern. This arises not only from the language contained within the proposed order but its interpretation by the person or persons (presently not identified) whose opinion with respect to the proposition might be sought.
c)What, in essence, is sought is the approval of some unspecified third person for the commencement of time in accordance with orders made by the Court. Whilst circumstances might well be envisaged wherein a condition precedent to the commencement of time as ordered by the Court might be appropriate (e.g. the provision of a “clean” drug test or completion of a particular course or program) such a broad and undefined condition precedent would be problematic. It would leave the parties open to significant dispute as to qualification, interpretation and/or basis for opinion as offered. This is highly undesirable.
d)Importantly, I am concerned that no person who could be identified as a “… treating mental health professional” to Ms Doddrell has been approached as to their willingness to provide such comment, opinion nor the advisability of same.
It is fundamental to Ms Doddrell’s health care and treatment that she is able to engage appropriately and confidentially with her treating medical practitioners. Ms Doddrell’s capacity to meet her needs and those of the children requires that she can seek and obtain assistance as and when she requires it.
In the proceedings to date a significant volume of material has been produced with respect to each of the parties but principally with respect to Ms Doddrell and her past medical treatment. Indeed, some three boxes of material has been produced on subpoena.
Whilst all of the material produced on subpoena has not been tendered before the Court (indeed very little of that produced would appear to be before the Court in evidence), I accept that all such material has been read and considered by the parties and/or their legal representatives and has been the subject of advice to them.
There is a marked difference between that which was opined by Ms Doddrell’s mental health professionals in January 2013 (see for example annexure ‘B’ to Mr Doddrell's Affidavit sworn 26 June 2013) and the present. All available evidence (leaving aside that the subject of the Report, the difficulties with which are identified above) would suggest that Ms Doddrell has, in the most trying of circumstances – having been the victim of significant incidence of abuse and whilst engaged in these proceedings) made significant progress in her functioning, capacity and mental health stability.
To the extent that the orders proposed by the Independent Children’s Lawyer are intended as a “safeguard” I am satisfied that they are both unnecessary (having regard to the evidence discussed above) and are undesirable. The interference in the confidential therapeutic support received by Ms Doddrell should not be countenanced other than for good reason. The maintenance of such confidentiality is a crucial and significant element of the benefit received by Ms Doddrell therefrom.
To interfere in that therapeutic relationship would, potentially if not in reality, be a far greater risk to the children’s relationship with each parent and their capacity to maintain a relationship with each parent than the absence of an order providing for a “safeguard” which neither parent perceives as necessary or desirable and which the evidence would not support as necessary.
It is to be noted that the Independent Children’s Lawyer does not seek to continue their appointment in the proceedings for the purpose of monitoring and overseeing the provision of further information or addressing any further matter which might arise.

Legislative pathway

In dealing with and addressing the orders sought by the Independent Children’s Lawyer I propose to also touch upon the legislative pathway. The order that is sought is a parenting order and, accordingly, regard must be had to that which is laid down by Parliament as the appropriate considerations.
I must commence with the objects and principles in section 60B of the Act namely:
Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
The objects and principles, whilst not forming part of the substantive law, guide the interpretation of the substantive provisions.
I am required by the objects to ensure that orders made by the Court, as far as practicable, provide the children with the benefit of both of their parents having a meaningful involvement in their lives. The orders that are proposed by the Independent Children’s Lawyer do not go to this object.

The objects also require that I ensure that children are not physically or psychologically harmed as a consequence of exposure to abuse, to neglect or family violence. It is important to note that no allegation has been raised on the evidence as to the children’s past or likely future exposure to physical or psychological harm.
In the event that either parent became incapable of meeting the children’s needs due to illness (whether physical or psychological) then the children might be exposed to neglect. In the case of the father this is unlikely as he has the full-time assistance and support of his mother and stepfather with whom he lives and who compliment and augment his parenting and who provide an excellent assistance to the children and their care.
In the case of Ms Doddrell, I am satisfied that the evidence presently before the Court would support and found a finding that she is capable of meeting the children’s needs, both physically and emotionally. Further I am satisfied that:
a)There is nothing in the evidence that would suggest any reasonably predictable likelihood of incapacity on the part of Ms Doddrell in the foreseeable future; and
b)There would be a risk to the children of further interfering with or limiting their relationship with their mother.
As observed above these are children who have lived with their parents since birth and until quite recently. The children’s lived experience of their parents is well understood by them. These children appreciate how their parents are, how their parents act and accept them as they are.
Whilst it is submitted that a “safeguard” is required as Y is a child of only 10 (nearly 11) years of age, I am conscious that he has, no doubt, developed a relatively sophisticated understanding of his parents and their dynamic. The children are not anxious around their parents and are observed and acknowledged by the report writer to be settled and comfortable with their parents and each of them. The children do not perceive risk from their parents (and I am satisfied that this is consistent with the absence of risk).
I do not intend to suggest that children should be responsible for apprehending and safeguarding against risk to themselves. However, a perception of risk must be real and must be based upon real and valid concerns.
These children and each of them are clearly aware of their mother’s health conditions and have lived with them all of their lives. To the extent that epilepsy was raised as an issue I accept that it does not represent any risk to the children or either of them nor do the children apprehend or perceive it as a risk. Similarly, the children do not apprehend the mother’s emotional and psychological functioning as injurious to them or as posing a risk and nor has the mother’s functioning, as demonstrated by evidence before the Court, ever posed the reality of injury or risk to them.
The Court must ensure that the children receive adequate and proper parenting. I am satisfied that the orders already made as regards the children’s time and interaction with their mother will, without the need for further order or “safeguard”, meet this end.
The principles include a right to know and be cared for by both of their parents. To date the children’s time and interaction with their mother has occurred on a supervised basis. The parties each agreed that this need for supervision has expired. Indeed the mother’s capacity to meet the children’s needs, for the limited periods that the children will be in her care, is supported and demonstrated by the evidence before the Court. Accordingly, the children can now progress to spend unsupervised time with their mother and thereby, albeit for relatively brief periods of time, develop and practice a more substantial and meaningful relationship with her.
I am not satisfied that any risk, unacceptable or otherwise, exists as regards these children and as a consequence of their spending time with their mother on an unsupervised basis. Whilst clearly there have been periods in the past when such risk may have been present, particularly at and immediately following the separation of the parents and whilst Ms Doddrell had been significantly unwell, such periods are in the past and such risk as might, in the past, have been apprehended is no longer apparent.
The Court is then reminded by section 60CA of the Act that the child’s best interests are paramount in all that is done.
I am required, by section 61DA, to consider whether the presumption of equal shared parental responsibility applies. The parties agree and submit to an order for equal shared parental responsibility and that order has been made by me. I am satisfied that it is appropriate.
There is nothing in the evidence that would suggest that the presumption of equal shared parental responsibility should not apply nor as would suggest that the presumption should be rebutted. There are certainly difficulties with the manner in which the parties communicate with each other. However, the parties can, with some limitations, communicate effectively and each submits to an order for equal shared parental responsibility demonstrating their confidence that the obligations created by such an order, such as the obligations created by section 65DAC of the Act, can be met.
That being so I am obliged to consider, by reference to section 65DAA of the Act, equal and substantial and significant time before any other time arrangement. Orders have already been made with respect to the time that the children and each of them will spend with their mother. I do not propose to nor am I invited to interfere with those orders. Rather, I am invited to augment the orders by those which are sought by the Independent Children’s Lawyer.
I am not satisfied that the orders proposed by the Independent Children’s Lawyer will assist in the operation of the children’s time with their mother nor the development and maintenance by the children of their relationship with their mother (or for that matter their father).
As indicated above I am satisfied and find that the orders that are sought, leaving aside the difficulties as to the interpretation and application of the orders and their potential to subvert and interfere with the operation of the orders already made, will do nothing to aid either the children’s safety (nor are they necessary to secure it) or the children’s relationship with either parent.
In determining the children’s best interests I am otherwise required to consider each of the matters set out in section 60CC of the Act.

Primary considerations

In turning to the primary considerations I must be focused upon:
a)The benefit to the children of maintaining a meaningful relationship with each parent; and
b)The need to protect the children from exposure to abuse, neglect and or family violence and the potential for injury as a consequence thereof.
The latter is prioritised over the former by section 60CC(2A) of the Act.
As indicated above I am not satisfied that there is a risk, unacceptable or otherwise, of the children being exposed to or subjected to abuse, to neglect or family violence. Thus I am left to consider the benefit to the children of enjoying and maintaining a meaningful relationship with each parent.
I have some concern that the orders as sought by the Independent Children’s Lawyer will have the potential to negatively impact upon the children’s enjoyment of a meaningful relationship with their mother. It has the potential to create some degree of anxiety for the mother (which, ironically, may be counter-productive to the intention expressed by the Independent Children’s Lawyer of “safeguarding” the children from the mother’s emotional distress and incapacity arising therefrom) as well as engendering mistrust between the parents where such mistrust does not presently exist or operate.
I am struck by the reality that Mr Doddrell does not seek to impose the requirement for independent comment upon Ms Doddrell’s capacity before the children commence spending overnight periods with their mother. On the basis of accepting Mr Doddrell as an insightful, appropriate and caring parent for the children, I am loathe to go beyond that which is sought by him and seen as necessary. However, in the event that any deficit in Ms Doddrell’s capacity was perceived by the Court (having been demonstrated on the evidence) I would require such “safeguard” irrespective of Mr Doddrell’s rejection of the necessity for same. However, in light of the evidence as it stands I, similarly, do not accept the necessity for such an order.

Additional considerations

Views

The report writer suggests that the children do not express any clear view. This is, to the extent that the children are suggested to have expressed to the report writer and their mother (as part of the report interviews the basis of criticism of the mother) to desire a shared care arrangement, is an accurate statement. I am not satisfied having regard to the context of such statements by the children that any weight could or should be attached thereto.
The children do clearly express, to both of their father and their mother as well as to the report writer, a desire to enjoy a relationship with their mother and to spend time with her on a far more regular and extensive basis than has occurred since separation.
To the extent that the report writer has suggested that little if any weight would be given to the children’s views, I am satisfied that this is so as regards any expressed desire for an equal time arrangement. However, as regards the children’s expressed desire to enjoy and practice a relationship with their mother and on a far more extensive basis than has occurred to date I am satisfied, by reference to authorities such as Harrison & Woollard (1995) FLC 92-598 and Re R Children’s Wishes [2000] FamCA 43, that some far more significant weight should be attached thereto.
The orders that had been made between the parties as regards the children’s time with their mother are at the lower end of that which the children have expressed as their desire for the future.
I do not consider that it is appropriate that the children would express any view as to the orders which are now sought by the Independent Children’s Lawyer (noting that the children are, in all probability, completely oblivious that such an order is or would be sort). However, the children’s views and perceptions as to their time with and relationship with their mother is of some assistance. As indicated above, the children do not express any perception of incapacity on the part of their mother. That is not to place the children in a position of assessing the mother’s appropriateness as a parent or making the children responsible for their own safety and well-being. However, to the extent that the children do not perceive the necessity for nor desire any further impediment or restriction upon their relationship with their mother, I am satisfied that this is of some guidance to the Court in rejecting the orders proposed by the Independent Children’s Lawyer.

Nature of the children’s relationship with each parent

I am satisfied, on the evidence as a whole, that the orders proposed by the Independent Children’s Lawyer with sit uncomfortably with the relationship between the children and their mother.
These children clearly hold great warmth and affection for their parents and each of them and desire to spend more substantial and significant time with their mother.
As the evidence before the Court does not demonstrate any risk to the children as a consequence of the mother’s capacity, I am satisfied that the children’s relationship with their mother would be best practised by moving to the periods of unsupervised time which have been ordered and without further restriction.
I have every confidence that in the event that matters arose regarding the mother’s capacity or functioning that the father would act protectively. Further, there is nothing within the evidence that would suggest that any difficulties faced by the mother in her own self-care and functioning have, at any time, impacted upon the children and I am satisfied that they would not do so in the future.
Whilst Mr Doddrell has clearly experienced a significant number of difficulties in self-care and with her functioning, she has demonstrated some real insight into the onset of these difficulties and she has an abundant support network available to her.

The extent to which each parent has taken or failed to take the opportunity to engage with the children in decision-making

This is not a criticism of either parent.

Financial provision by each parent

Mr Doddrell meets the needs of these children through his own endeavours and those of his mother and stepfather who provide real, daily assistance.
Neither parent has any independent financial means available to them and each is dependent upon Centrelink for their support and that of the children.
Whilst clearly Ms Doddrell does not provide financial support for the children by way of child support or otherwise, this is not and could not, in the circumstances, be the basis of criticism of her nor is the issue of any assistance in dealing with the application before the Court.

Likely effect of change

The orders which the parties have now entered into will provide for a significant and beneficial change for these children. They will now be able to spend time with their mother on a regular, unsupervised basis and for periods which will meet the children’s need for a relationship with their mother and sit comfortably with the mother’s capacity to meet the children’s needs.
I am satisfied that the change brought about by the conclusion of these proceedings and by the orders made is beneficial for the children.
On the basis that the evidence does not support any significant concern, on present evidence, as to the mother’s capacity to meet the children’s needs now or in the foreseeable future, I am satisfied that the orders proposed by the Independent Children’s Lawyer may have some potential to be disruptive, and unnecessarily so, to the beneficial arrangements which the substantive parenting orders provide. This would weigh against such orders being made.

Reasonable practicality

The parents live relatively close together. The parent’s geographical proximity does not speak to the issues raised by the orders proposed by the Independent Children’s Lawyer.
The parents have some limited capacity to communicate with each other and resolve difficulties. The requirement for the mother to obtain a letter or report from her treating mental health professionals, provide this to the father before proceeding to spend overnight time with the children, would have some capacity to interfere with the already fragile communication between the parties engendering further distrust.
Overall, I am not satisfied that considerations of reasonable practicality would support or operate against the orders sought by the Independent Children’s Lawyer.

Capacity of each parent to provide for the children

As would be clear from the above, I am satisfied that each parent is capable of meeting the children’s needs for such periods of time as the children will be in their care pursuant to the substantive orders already made. Accordingly, this factor is neutral to the consideration before the Court.

The children’s maturity and background

These children are 15 and 10, nearly 11, years of age.
These children are fully aware of the issues raised with respect to their parents and each of them. To the extent that either of their parents have any incapacity or deficiency in their parenting (judged by which objective standard it is unclear) they are able to deal with these and are in a position to speak for themselves. That is not to suggest that these children or any child should ever be placed in a position whereby they are responsible for their own care and wellbeing. However, the evidence would suggest that the children have, since their birth, been able to deal with and negotiate any perceived shortcoming of their parents or either of them and to do so successfully and without injury.
There are many children in the community (of whom these children are but two) who live with parents with physical and psychological disabilities. A great many children play the role of carer for their parents within such households. These children have played such a role in the past and prior to the separation of the parents. That is not to detract from the primacy of parenting provided by Mr Doddrell but simply to acknowledge that the children have, to some extent, been involved as carers for their mother if only on an emotional basis.
I am concerned that it would be injurious for these children to have further restriction upon their relationship with their mother and in circumstances whereby they clearly express a desire to have a more abundant relationship with their mother and absent any finding that to do so would pose a risk to their health and safety or well-being.
In those circumstances and having regard to the relative maturity of these children, who are well familiar with each of their parents and their lived experience of being parented by each, I am satisfied that the children’s maturity and background would support the orders to which the parents have consented (and which I have already made) and would obviate against the need for the orders proposed by the Independent Children’s Lawyer.

Aboriginality

Neither parent nor the children identify as Aboriginal or Torres Strait Islander.

Attitude to parenting responsibilities

I am satisfied that this is addressed above and does not require further consideration.

Family violence

This is not raised as a factor by either party nor by the Independent Children’s Lawyer.
To the extent that concern is raised that Ms Doddrell has “failed to act protectively” as a consequence of the assault upon her by a hospital employee (occurring within her home at a time that when the children were present but not directly witnessing whatever occurred on that occasion) I reject same. Ms Doddrell was, on that occasion, the victim of an assault. She did not invite the assault. She was not in any way culpable for the assault. She was a victim of another person’s behaviour and I am satisfied she should not be further victimised.

Family violence orders

There are none.

Whether it is preferable to make the order that will least likely lead to the institution of future proceedings

Each of the parties submit that this factor would obviate against orders as proposed by the Independent Children’s Lawyer. There is some force to this. However, I note, that the Court is required to consider “whether” it is preferable to make an order that will avoid the future proceedings rather than being required and compelled to make the order that will most likely avoid future proceedings.
The order that is proposed by the Independent Children’s Lawyer creates the very real potential that either future proceedings will be generated (on the application of either party and subject to the ability of Ms Doddrell to obtain and provide the report as sought and/or by reference to the contents of any such report), or that Ms Doddrell’s therapeutic relationship with her treating health professionals will be negatively impacted without good reason.
As already observed, no request has been made of any person with whom Ms Doddrell is presently engaged for treatment to ascertain their willingness and consent to provide a report. While certainly a report has been provided to Ms Doddrell’s attorneys with the consent of Ms Doddrell this represents a significantly different context to that envisaged by the orders proposed by the Independent Children’s Lawyer. The report that has been relied upon in Ms Doddrell’s case has been provided at the request of Ms Doddrell and to provide assistance to her case. That is not to suggest that the report is anything other than an accurate and truthful account of past treatment and prognosis.

What is sought by the Independent Children’s Lawyer is a report that seeks to offer opinion as to Ms Doddrell’s capacity and which potentially will bring Ms Doddrell’s treating practitioners into a position of ethical difficulty or conflict. That is not to suggest that I accept any deficiency or incapacity on the part of Ms Doddrell. It is, however, an onus requirement to impose upon a third party and an ethically difficult position in which to place a therapist. I am not satisfied that it is necessary or appropriate in the context of this case on the evidence as it stands.
Whilst absent input from Ms Doddrell’s treating therapist there remains the possibility of future proceedings (particularly if Mr Doddrell were to become concerned as to Ms Doddrell’s functioning and capacity), this possibility is preferable to both the distrust that would potentially be generated between the parties and the potential for negative impact upon the therapeutic relationship between Ms Doddrell and her treating specialist.

Conclusion

For all of the above reasons I am not satisfied that the orders proposed by the Independent Children’s Lawyer, whilst it has been entirely appropriate for them to seek them, are necessary, desirable or supported by the evidence. Accordingly I decline to make such orders which will, thus leave the orders made by me on 3 October 2014 to operate without further condition, requirement or interference.

I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate:

Date: 10 October 2014

[2014] FCCA 2305

10 October 2014

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